Gladden v. State

Decision Date23 December 1974
Docket NumberNo. 57,57
Citation330 A.2d 176,273 Md. 383
PartiesJohn Michael GLADDEN v. STATE of Maryland.
CourtMaryland Court of Appeals

George E. Burns, Jr., Asst. Public Defender, Baltimore (Geraldine Kenney Sweeney, Asst. Public Defender, Baltimore, on the brief), for appellant.

Alexander L. Cummings, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

In early March 1973 the petitioner, John Michael ('Box') Gladden, sold to his erstwhile friend Walter Edward ('Rabbi') Siegel 1 two ten dollar bags of heroin-at a discount-for $19. Disenchanted with the chemical quality of the contraband, Siegel, three or four days later, confronted his vendor in the privacy of a bathroom in a nearby tavern, and with a .22 caliber revolver as a persuader, recouped ten dollars and five bags of what he trusted might be better grade heroin. Needless to say, the petitioner, chagrined by such a forcible commercial transaction, vowed revenge and sought out Siegel on Saturday, March 10th, at yet another bar, there inquiring of Siegel's residence.

About 2:30 p. m. on March 12, 1973 the petitioner spotted Siegel then sitting on the front steps of a residence in the 2300 block Barclay Street, and approached him holding a 'big black cowboy gun.' A girl friend of Siegel, Patsy Quickly, was standing nearby; she shouted a warning and interposed herself between the antagonists, exhorting the petitioner not to kill Siegel and offering herself to pay him back one-half the money for the narcotics taken from him. 2 This brief interval permitted Siegel to take flight from the steps and, running south on Barclay Street, to seek cover behind a parked truck. The petitioner, in fresh pursuit, followed, and as they circled the truck Gladden, at intervals, wildly got off four or five shots from his .45 caliber gun without hitting his intended target. One of the projectiles struck the window sill of the premises at 2327 Barclay Street, two others struck nearby homes, and one, transiting the window at 2325 Barclay Street, pierced the chest of William Jeffrey Nixon, 12 years of age, a resident there, who was seated on the living room couch.

In his trial in the Criminal Court of Baltimore, upon an indictment charging him with the murder of young Nixon, the trial judge (Levin, J.) instructed the jury, inter alia, as follows:

'What is the situation where a person intends to kill one person but instead kills another person? To put it a different way, what is the situation when the deceased is not the intended victim? The law is that such a homicide partakes of the quality of the original act so that the guilt of an accused is exactly what it would have been had the shots been fired at the intended victim instead of the person actually killed. The fact that the person actually killed was killed instead of the intended victim is immaterial and the only question is what would have been the degree of guilt if the result intended had actually been accomplished. The intent is transferred to the person whose death has been caused.

If you find from the evidence and beyond a reasonable doubt that the defendant would be otherwise guilty of murder in the first degree of Mr. Siegel, and I have defined murder in the first degree, if you find from the evidence and beyond a reasonable doubt that the defendant would be otherwise guilty of murder in the first degree of Mr. Siegel, and if you find further beyond a reasonable doubt that the Nixon child died as a result of a bullet or bullets striking him fired by this defendant, then you should find the defendant guilty of murder in the first degree.'

Counsel for the petitioner filed a timely exception to the instruction, contending that 'the doctrine of transferred intent is not the law of Maryland,' and thus preserved the point for appellate review. See Maryland Rule 756(f) and (g).

The petitioner's conviction of murder in the first degree was affirmed by the Court of Special Appeals in Gladden v. State, 20 Md.App. 492, 316 A.2d 319 (1974). Judge Moylan, who wrote the opinion for that court, stated: 'We have no difficulty in deciding that 'transferred intent' is, and should be, a part of the common law of this State,' and after pointing out that our courts had never ruled on the point, concluded: 'We now hold that the doctrine of 'transferred intent' is the law of Maryland and that whatever mens rea a defendant entertains as to his intended target will carry over to any unintended victim, when the attack goes wide of its mark.' Because the application of the doctrine of 'transferred intent' was one of first impression in this Court we granted certiorari.

The petitioner contends that in the absence of a specific intention to kill young Nixon the doctrine of transferred intent was improperly applied and cannot be used as a substitute for the willfulness, deliberation and premeditation required to constitute murder in the first degree under Maryland Code (1957, 1971 Repl.Vol.) Art. 27, § 407. The statute reads as follows:

'All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree.' 3

For a homicide to be 'wilful' there must be a specific purpose and design to kill; to be 'deliberate' there must be a full and conscious knowledge of the purpose to kill; and to be 'premeditated' the design to kill must have preceded the killing by an appreciable length of time, that is, time enough to be deliberate. Robinson v. State, 249 Md. 200, 238 A.2d 875 (1968); Howard v. State, 234 Md. 410, 199 A.2d 611 (1964); DeVaughn v. State, 232 Md. 447, 194 A.2d 109 (1963), cert. denied, 376 U.S. 927, 84 S.Ct. 693, 11 L.Ed.2d 623 (1964); Cummings v. State, 223 Md. 606, 165 A.2d 886 (1960), cert. denied 366 U.S. 922, 81 S.Ct. 1098, 6 L.Ed.2d 243 (1961); Kier v. State, 216 Md. 513, 140 A.2d 896 (1958); Elliott v. State, 215 Md. 152, 137 A.2d 130 (1957); Faulcon v. State, 211 Md. 249, 126 A.2d 858 (1956); Chisley v. State, 202 Md. 87, 95 A.2d 577 (1953).

In order to sustain a conviction of murder in the first degree, as thus defined, the jury must find "the actual intent, the fully formed purpose to kill, with so much time for deliberation and premeditation as to convince them, that this purpose is not the immediate offspring of rashness and impetuous temper and that the mind has become fully conscious of its own design.' It is not necessary that deliberation and premeditation shall have been conceived or have existed for any particular length of time before the killing. Their existence must be judged from the facts of the case. . . .' Chisley v. State, 202 Md. at 106, 95 A.2d at 586. See also Hyde v. State, 228 Md. 209, 215-216, 179 A.2d 421, 424 (1962); Cummings v. State, 223 Md. at 611, 165 A.2d at 888-889; Faulcon v. State, 211 Md. at 257-258, 126 A.2d at 862-863. 'If the killing stems from a 'choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder." Wilson v. State, 261 Md. 551, 565, 276 A.2d 214, 221 (1971). See also Robinson v. State, supra; Tull v. State, 230 Md. 596, 188 A.2d 150 (1963); Hyde v. State, supra; Dunn v. State, 226 Md. 463, 174 A.2d 185 (1961); Cummings v. State, supra; Kier v. State, supra; Faulcon v. State, supra; Chisley v. State, supra. This Court has held in Wilson, Cummings and Chisley that the firing of shots from a weapon interspersed by an interval of time was sufficient evidence of deliberation and premeditation.

Malice is an indispensable ingredient of murder-whether it be murder in the first or second degree; such malice may be express or implied. Stansbury v. State, 218 Md. 255, 260, 146 A.2d 17, 20 (1958). As relating to murder it has been defined 'as the intentional doing of a wrongful act to another without legal excuse or justification' and as including 'any wrongful act done wilfully or purposely.' See Chisley v. State, 202 Md. at 105, 95 A.2d at 585. See also Lindsay v. State, 8 Md.App. 100, 104, 258 A.2d 760, 763 (1969), cert. denied, 257 Md. 734 (1970). 'In the absence (of evidence) of justification, excuse, or some circumstance of mitigation, malice may be inferred when there is an intent to inflict great bodily harm or when one wilfully does an act, the natural tendency of which is to cause death or great bodily harm.' Faulcon v. State, 211 Md. at 257, 126 A.2d at 862. Our predecessors have held '(a)n actual intent to take life is not necessary for a conviction of murder if the intent is to commit grievous bodily harm and death occurred in consequence of the attack.' Davis v. State, 237 Md. 97, 104, 205 A.2d 254, 258 (1964), cert. denied, 382 U.S. 945, 86 S.Ct. 402, 15 L.Ed.2d 354 (1965); Webb v. State, 201 Md. 158, 93 A.2d 80 (1952). Thus, under our decisions, since the malice required for murder may be either express or implied, there is no requirement that a specific intent to kill, and thus express malice, exist; a person may commit murder without an actual intent to kill (express malice) for the law will infer or imply malice from the attendant circumstances in some unintentional killings. See Cook v. State, 9 Md.App. 214, 218, 263 A.2d 33, 35, cert. denied, 258 Md. 726 (1970); Lindsay v. State, supra.

In our opinion there was ample evidence from which the jury could find the presence of malice, in that Gladden, without legal justification or excuse, was engaged in the 'intentional doing of a wrongful act to another wilfully and purposely'; indeed, there was evidence from which the jury could have found on his part an actual intent to kill Siegel and thus express malice. As to whether or not the conduct of the petitioner was 'wilful' and thus with a...

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